Thank you very much.
My name is Julie Macfarlane. I have been a law professor for 40 years, working in the U.K., Ireland, Hong Kong, Australia, the U.S, and most of all, obviously, in Canada. I was honoured with the Order of Canada for my work on access to justice in 2022.
I am also, personally, a survivor of sexual abuse and rape. In 2014, I sued the Anglican church for sexual abuse by a church minister while I was a teenager. This was when I first encountered the default use of non-disclosure agreements to silence those who make settlements over sexual abuse.
I told the Anglican church immediately that I had no intention and would not consider signing an NDA. In fact, part of my settlement with the church was a new code of practice for its insurers, when working with the victims of sexual violence and abuse. It included a provision that an NDA would only be used in “exceptional circumstances”.
How naive I was then. Now I know this practice continues, and hence my commitment to legislative change and not purely voluntary change that can't monitored. I think that has other ramifications for the issues you're discussing here in the committee.
In 2013, I became aware that one of my faculty colleagues at the University of Windsor was sexually harassing students. Having heard directly from the students he was targeting, I went to my president, who ordered his suspension and an investigation. A year later, he was terminated for multiple instances of abuse and harassment in a three-page termination letter.
The students and I felt relieved until I began to receive calls from colleagues at overseas law schools where he had applied for a position. They were asking me, “Why did a tenured professor leave the University of Windsor?” I realized immediately the university had given him an NDA, a copy of which I now have. It included cleaning his personnel files for the previous 10 years and also a letter of recommendation, which he took with him.
I'm sure this all sounds rather familiar having just been listening to the testimony of Mr. Reed of Canada Soccer. It is absolutely plain that Bob Birarda was given an NDA, as this is the default practice in the settlement of sexual abuse and harassment suits. Of course, that was why nothing was ever said about where he was going to work next, why no red flag was placed by his name and why Mr. Reed would have needed to get legal advice if he was going to speak about what he had done and to place a warning on him.
We see this constantly all the time.
After two years of efforts to persuade the University of Windsor to change its policy on giving NDAs to people it acknowledged were known predators, I resigned in disgust in December 2020. I then joined forces with Zelda Perkins, who was the first woman to break her Harvey Weinstein NDA. We have created Can't Buy My Silence, a global campaign to ban the use of NDAs to cover up misconduct.
I am happy to say we have already made rapid strides in Canada. We have a bill that was passed into law in Ontario, strengthening post-secondary institutions, which now bans universities, like the University of Windsor, from doing what it did in 2014. That feels very important to me personally.
Further than that, having worked with lawmakers in Ireland to create a model bill to limit the use of NDAs to their original purpose—which, let's remember, was the protection of trade secrets—that legislation is now going forward in Ireland. It was passed into law in Prince Edward Island in 2022 as the Non-disclosure Agreements Act. That legislation covers all workplaces, including universities and voluntary positions, like coaching in a sports area. That has also been tabled in British Columbia, Nova Scotia and Manitoba, and will shortly be tabled in Ontario.
We have collected data at Can't Buy My Silence that is qualitative, through personal anonymized stories of people who have been coerced into NDAs and who consistently don't understand what they're signing and consistently aren't given an alternative—